We would like to once again extend our deepest gratitude to Opinio Juris for providing us with such a wonderful forum to host this symposium. Thank you to all of the scholars who contributed insightful commentary, and especially to Jenia Turner for her thought provoking article. We hope this symposium helped to advance the dialogue about the complicated issues surrounding the conduct of international prosecutors.

Many thanks to Opinio Juris and the NYU Journal of International Law and Politics for hosting the symposium and to Margaret deGuzman, Alex Whiting, Sonja Starr, James Stewart, and Kevin Heller for agreeing to read and comment on my article. I would like to use this opportunity to address briefly several key points raised by the commentators.

1) The balancing approach and the ICC’s competing purposes

In the article, I argue that the ICC pursues multiple and sometimes competing goals—protecting defendants’ rights, promoting respect for the rule of law, holding perpetrators of international crimes responsible, and establishing a record of the atrocities. While the first two goals generally tend to favor stricter remedies for prosecutorial misconduct, the last two goals call for a more tempered approach. Meg deGuzman agrees that the balancing approach is necessary to accommodate the competing goals of the ICC, but she argues that the goal of promoting global norms takes precedence. To attain this goal, the court should err on the side of defendants’ rights when addressing prosecutorial misconduct. This would help spread respect for the highest standards of procedural fairness.

I appreciate the opportunity to respond to Jenia’s excellent article. I always learn from her scholarship, and this article is no exception. That said, I find myself in an unusual quandary. When asked to critique an article, I normally take issue with its substance. There is very little substance in Jenia’s article, however, with which I disagree. Indeed, if she and I were both ICC judges, I imagine that we would almost always agree on the appropriate remedy or sanction for a violation of a defendant’s rights.

That said, I find the rhetoric of Jenia’s article very problematic. To begin with, I think her distinction between “absolutist” and “balancing” approaches to remedies misleads more than it enlightens. Like my friend Meg DeGuzman, I don’t believe that the ICC has ever engaged in the “absolutist” approach, selecting remedies for misconduct without reference to the consequences for victims, the penological rationales of international criminal law (ICL), etc. When the Court has selected a drastic remedy for a violation of the defendant’s rights, it has done so only when the violation seriously compromised the Court’s ability to accurately determine the defendant’s guilt or innocence. The Trial Chamber initially stayed the proceedings in Lubanga, for example, only when it lost faith in the OTP’s ability to identify (much less disclose) exculpatory evidence. In Jenia’s own words (p. 188), “[w]ithout examining the documents at issue, the Chamber would be unable to ensure that the verdict in the case was fair and accurate.” The Appeals Chamber, in turn, only lifted the stay once it became clear that the OTP would, in fact, disclose any and all exculpatory evidence to the defendant.

In September 2000, I began work for appellate judges at the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia. Soon after arriving, I quickly came upon a decision the Appeals Chamber had rendered in a case called Barayagwiza.[1] In that case, the Appeals Chamber initially stayed proceedings against Jean-Bosco Barayagwiza, one of the chief architects of the notorious radio station, Radio télévision libre des millies collines (RTLM), because he had spent close to a year in custody without being charged. The stay was a radical response to the prosecutorial (and judicial) error: it effectively ended the trial of one of the Rwandan Genocide’s most outspoken protagonists. Predictably, Rwanda baulked at the decision, and threatened to cut all ties with the ICTR. With this response and other new information, the Appeals Chamber reviewed its earlier decision, lifting the stay and declaring that the violation of Barayagwiza’s basic rights could be addressed through either a sentence reduction or financial compensation in the event of an acquittal.

At the time, I felt that politics had trumped principle in Barayagwiza, but I hadn’t then had the benefit of Professor Jenia Iontcheva Turner’s excellent new article. Professor Turner’s piece Policing International Prosecutors eloquently argues against the type of absolutist positions that the Appeals Chamber first adopted in Barayagwiza. Rather, it favors a more nuanced array of sanctions that can be calibrated to specific prosecutorial errors. She argues that the absolutist position does violence to the interests of victims, the desires of the international community and potentially the quest for peace and reconciliation. These values should not be sacrificed to generate greater prosecutorial discipline. Instead of adopting such blunt sanctions, Professor Turner ably argues that international courts and tribunals should consider and deploy a wider variety of sanctions, which can be better married to the intricacies of each particular prosecutorial violation. These sanctions include sentencing reductions, dismissal of select counts of an indictment, declaratory relief, and the type of compensation envisaged for Barayagwiza. A wider panoply of institutions should also have some role in this process.

In Policing International Prosecutors, Jenia IontchevaTurner offers a rich account of the competing interests at stake in cases involving international prosecutors’ misconduct, and advances a strong case that remedial doctrines should squarely acknowledge those competing interests. Because international law has often struggled to close the gap between rights and remedies, many might understandably be skeptical of proposals to explicitly recognize the validity of such gaps. Still, I agree with Turner that in some instances, a candid remedial interest-balancing approach is the best solution to intractable conflicts of legitimate interests. I have previously proposed remedial interest-balancing and the use of intermediate remedies (e.g., sentence reduction) in international criminal procedure on the grounds that it might improve the protection of defendants’ rights. Overly rigid remedial rules may perversely often result in no remedy at all, because if the only available remedies involve releasing defendants who may be perpetrators of atrocities or ordering a costly and lengthy retrial, tribunals may find ways to avoid recognizing rights violations in the first place. Turner offers a distinct, complementary argument: even assuming interest-balancing is not ultimately better for defendants, defendants’ rights are not the only important interest at stake. Holding the perpetrators of international crimes accountable and establishing a record of atrocities are vital international interests that sometimes should outweigh the defendant’s right to a remedy for misconduct.

Turner argues persuasively for this conclusion, develops the case for a range of alternative remedies, and proposes a nuanced approach designed to ensure that defendants’ rights are not compromised unnecessarily. In this regard, her proposal could be strengthened if it clearly drew one bright-line distinction: interest-balancing can never justifiably extend to permit courts to allow a conviction that is not based on a fair trial (or a valid guilty plea). By “fair trial,” I mean one that, whatever its failings, remains a legitimate test of whether the defendant’s guilt is established beyond reasonable doubt. If prosecutorial misconduct throws the validity of a conviction into doubt (or, ex ante, has rendered it impossible to ensure a fair trial even if lesser remedies are invoked), the tribunal’s obligation is not just remedial in nature—it is an obligation to cease a continuing violation of the defendant’s rights or to prevent a future one, namely the imposition of wrongful punishment.

I commend Jenia on her thoughtful and balanced analysis of remedies at the ICC for prosecutorial mistakes or misconduct. It is a topic that should be of interest and concern to all actors within the Court, as well as interested parties on the outside. I particularly appreciate that she clarifies that she is talking about both prosecutorial errors and misconduct. I can attest to the extremely high ethical commitment of the prosecutors within the Office of the Prosecutor, and the intense distress that is felt within the office when mistakes are made. Nonetheless, mistakes, and even misconduct, can occur, and therefore it is important to consider the appropriate remedial approach when it happens.

Speaking for myself only and not on behalf of the office, I agree with Jenia regarding the wisdom of the balancing approach, but there may be an additional hazard to the ones she identifies. Just as an absolutist approach might cause judges to avoid finding a violation of an accused’s rights – what Jenia and others refer to as “remedial deterrence” – the balancing approach, which offers the judges a range of remedial options, risks having the opposite effect, causing judges to be too willing to find prosecutorial violations or prejudice to the defense. If judges can impose only a small penalty on the prosecution for an alleged violation, will they be more likely to succumb to pressures to “even” the score or to appear balanced and fair in a high-profile and much-scrutinized case? This risk will be greatest when it is not an individual prosecutor but rather “the Prosecution” that is to be sanctioned. We all like to think that judges are immune to such pressures, but the premise of the remedial deterrence argument is precisely that they are not, that they are in fact human, and so we must also consider the danger of pressures pushing in the opposite direction.

Thanks to Opinio Juris for inviting me to comment on Jenia Turner’s article and to Professor Turner for her excellent and thought-provoking work.

Professor Turner’s article tackles an important problem that has plagued the ICC in its early days. When the ICC Trial Chamber ordered the release of the the Court’s first defendant due to the prosecutor’s procedural violations, it sent shock waves through the international community. Was the ICC’s first case to be derailed by prosecutorial misconduct? Reactions were mixed. Some commentators felt the Trial Chamber was overreacting. Professor Bill Schabas invited the defendant to dinner.

Professor Schabas’ dinner did not come to pass, however, because the Appeals Chamber rejected what Professor Turner terms the Trial Chamber’s “absolutist” approach to remedying the prosecutor’s errors. The case proceeded, resulting in a conviction and a fourteen-year sentence.

Professor Turner’s article endorses the Appeals Chamber’s more moderate approach to identifying the appropriate remedy for prosecutorial errors and misconduct. Indeed, she urges international courts to go further and develop a balancing test that explicitly pits the interests of victims and the international community in prosecuting international crimes against the values of deterring misconduct and promoting fair trials. The article makes an important contribution to the growing literature on remedies at international criminal courts. Professor Turner provides both a detailed analysis of existing jurisprudence and a compelling normative argument, complete with proposed factors for courts to consider in performing the requisite balancing. The article will thus be extremely useful to scholars and judges alike.

A recurring question in international criminal procedure is how to ensure that prosecutors are held accountable for their errors and misconduct. When International Criminal Court (ICC) judges encountered the first serious error by the prosecution in Prosecutor v. Lubanga, they opted for an absolutist approach to remedies: the judges stayed the proceedings and ordered the release of the defendant. Although termination of the case was avoided through the intervention of the Appeals Chamber, the standoff between the judges and the prosecution highlighted the dilemmas that the ICC faces in these circumstances. To protect the integrity of its proceedings, the court must order remedies that effectively punish misconduct. At the same time, sweeping remedies may harm other interests of international criminal justice, including deterrence, retribution, and the establishment of an accurate historical record.

In its more recent decisions, the ICC has acknowledged these competing interests and weighed them in determining remedies for prosecutorial misconduct. This Article argues that the court should fully and openly embrace a balancing approach to remedies. Because of the gravity and systematic nature of international crimes, it is essential to recognize and accommodate the significant interests of the international community and victims in preventing impunity and establishing an accurate record of the crimes.

The balancing approach is not without shortcomings—it can be unpredictable, and it risks weakening enforcement of defendants’ rights. To avoid these dangers, the court should take several concrete steps in conducting the balancing analysis: specify clearly the factors that will guide it; place special importance on the fair trial rights of the defendant; temper remedies only when a significant and legitimate goal of the international criminal justice system warrants it; and finally, develop a broader range of responses to prosecutorial misconduct, including sentence reductions, partial dismissals, fines, and disciplinary referrals. By applying a well-defined balancing analysis, the ICC can achieve an approach to prosecutorial misconduct that is both effective and able to accommodate the competing interests of international criminal justice.

We look forward to the discussion on this important subject over the next two days.

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